Monday, May 3, 2010

The Hawaii legislature took everyone by surprise last week when it approved the creation of civil unions in the state. The gay press generally reported the development as approval of civil unions for same-sex couples, but that's not what the legislation does; it approves civil unions for any two unrelated adults who are not in another civil union, a marriage, or a reciprocal beneficiary arrangement. If Governor Lingle signs the bill (and she has weeks to decide), Hawaii will join Nevada and the District of Columbia in allowing both same-sex and different-sex partners to enter a legal status granting the state-based consequences of marriage (Nevada and DC call the status domestic partnership.)

This development in Hawaii is particularly notable because last year, when the bill to enact civil unions failed, numerous commentators suggested the bill tanked precisely because it included different-sex couples. As law professor Art Leonard noted, including different-sex couples can be seen as a challenge to traditional marriage. In an interview on Hawaii Public Radio, the executive director of Hawaii Family Forum, Dennis Arakaki, said including different-sex couples made the bill "much worse" than a bill limited to same-sex couples. On the other hand, at least one legislator reportedly changed his previous "no" vote to "yes" precisely because the bill now includes different-sex couples.

According to Equality Hawaii, there had been talk over a few years about whether to include different-sex couples in a civil union bill. Gay rights supporters ultimately decided to limit civil unions to same-sex couples precisely because they feared an argument that civil unions for heterosexuals would lead to an erosion of marriage. (The reciprocal beneficiary status now available in Hawaii extends to any two people who are prohibited from marrying -- so it's for same-sex couples and relatives; straight couples who want protection for their relationship have no choice but to marry.)

In 2009, a bill for same-sex couples only passed the House and came up in the Senate with only one day left in the 2009 legislative term. The bill was expected to pass, but opponents were able to stall the bill by amending it, and the amendment they chose was...extending civil unions to different-sex partners! The bill passed, but because of the amendment it needed another reading, which could not take place until the 2010 session. So this did sort of make it look as though the reason civil unions did not become law in Hawaii was because the bill included straight couples, but the bill including straight couples did pass; it just could not become law because the legislative session was over. In other words, the inclusion of straight couples created a procedural problem for the law, not a problem based on a substantive opposition to inclusion of straight couples.

The amended bill passed the Senate again on January 22, 2010, and then it had to go back to the House (because it had been amended). The House postponed voting on the bill but finally did approve it last week, That's how a bill for both gay and straight couples has come before Governor Lingle. So far no press is reporting that she might veto it specifically because it includes different-sex couples.

About Me

I have been working on gay and lesbian family law issues for more than 35 years. I teach at American University Washington College of Law, but for the 2011-2012 academic year and the Fall Semester 2012 I was the McDonald/Wright Chair of Law at UCLA. I have published many law review articles and book chapters. BEYOND (STRAIGHT AND GAY) MARRIAGE is my first book.